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Treading with care
Planning – 11 September 2009

Councillors attempting to give a steer on development proposals without waiving the right to represent the people who vote for them still face a host of difficulties despite relaxed rules and revised guidance, Mark Smulian discovers.

A metaphorical minefield surrounds planning committee meetings, at least from the perspective of their members.

They are supposed to judge applications on the evidence and policies before them and reach unbiased conclusions. But councillors are also supposed to represent their constituents. If residents are up in arms about a proposed tower block, a large new pub, an abattoir or whatever, it is politically difficult for members to explain that they cannot both campaign against a development and vote it down in committee.

The fact or appearance of having made up one's mind before hearing the evidence amounts to predetermination, which would put councillors in breach of their code of conduct.

This summer, the Local Government Association (LGA) tried to simplify these complex matters when it published updated guidance on probity in planning. It did so in part because the Killian-Pretty review urges councillors to talk with developers before applications are lodged so both sides are aware of the other's concerns and costly delays can be avoided.

Such discussions can lead to allegations that something improper has occurred in private or that councillors have decided their stance merely by participating. The LGA publication was written by Planning Officers Society vice-president emeritus Geoff Cross and offers guidance on how councillors can reflect residents' concerns while demonstrating that their vote will depend on the evidence put before them at the committee meeting.

They need to show that they might still support an application in the light of new facts even if they are strongly inclined to oppose it.

Predetermination causes much grief to councillors and the planners and legal officers - usually called monitoring officers - who advise them. The issue is not necessarily actual impropriety, let alone outright corruption. It is more about avoiding any perception of bias that might give an aggrieved developer or objector grounds for legal action. The matter is necessarily cloudy because it is one of perception and grey areas abound.

Cross points out that if councillors get involved in a proposal only after it is submitted, they can raise points that can be extremely costly and frustrating for developers.

"Councillors are being encouraged to play a fuller role in pre-application discussions but without predetermining them," he explains. "Monitoring officers generally take a cautious approach because they are cautious by nature. But if they are too cautious, it removes the potential for councillors to engage effectively in initial talks on major projects."

Councils must establish clear rules on what members can say and do, he advises. "You don't want to make a mistake that ends in litigation, but councillors are allowed to say what the issues are without voicing a fixed view. Experienced councillors will not find that difficult, but newer ones may feel that it is a minefield. It is up to the council to deal with it by having clear protocol and ensuring that pre-application talks are done properly, not over a pint after a round of golf."

According to Standards Board for England principal lawyer Mark Jones, councillors have had more room to manoeuvre since its code of conduct was relaxed in 2007. "As a former monitoring officer, my advice to councillors was that short of walking around with a placard saying how they would vote they should be allowed to represent their constituents' concerns and still vote. Indeed, they can carry out their representational role even if they are a member of a lobby group on a development," he argues.

"Before 2007, this was not the case," says Jones. "In the old days the code was a hindrance, but now members have little to fear. Some don't understand this."

It seems that now even placard-carrying councillors may still vote on an application so long as they do not state beforehand that they have irrevocably made up their minds. Yet many members in the planning fray remain unclear on their position.

"The board has slightly relaxed its rules so a councillor with an interest in a planning matter can now speak to the planning committee in the same way that any member of the public could and then leave the meeting," says John Blackie, a member of Richmondshire District Council and the Yorkshire Dales National Park Authority.

"But we still walk a fine line between engagement with developers and avoiding predetermination.

Councillors always want to find ways to represent constituents and vote." Flick Rea, a 20-year veteran of the London Borough of Camden's planning committee, says the balance between representing constituents and avoiding the appearance of predetermination is "not easy at all". Things were less complicated in the past when a less rigid framework governed pre-application talks and predetermination, she suggests. She cites Hampstead's New End Hospital, which closed in 1986 and was later refurbished as homes. "We had lots of discussions with everyone interested, with the result that we got something everyone agreed."

By contrast, officers kept councillors away from pre-application talks on the massive King's Cross development. "We ended up with two enormous tomes to read before a two-day committee meeting on the masterplan and I'm not convinced that any councillor grasped it all fully," Rea admits. "A lot of people came to it cold and it wasted a chance to involve us. Ultimately, it's a decision for individual councillors whether to vote. You may feel pressured but it's up to you."

Nowadays, Rea never votes if she wishes to act as an advocate for or against an application. This led to the controversial rejection of the British Museum extension in July. "I spoke in favour of it but felt that I could not vote because I was the cabinet member for culture and was closely involved in planning the extension. Had I voted, it would have gone through. I simply keep my powder dry if I do want to vote," she explains.

Ricky Bower, an Arun District Council member who sits on the LGA's regeneration and transport board, recalls a case where a councillor got dangerously involved with developers and was warned off by the monitoring officer when this emerged.

"It's an area fraught with danger", he cautions. "Councillors on development control committees and those with any involvement in decisions on local development frameworks must make it very clear that they are considering the matter in the light of all the evidence and that their view can change with that evidence."

The LGA's new advice is welcome but its interpretation could still cause difficulty, Bower predicts. "The problem is the way it is handled by monitoring officers in advising councillors. They interpret it with no consistency at all, either between councils or within them. Some will allow participation in pre-application discussions, others say no. It makes things very confusing."

Even Jones admits: "It is an absolute minefield, no doubt about that. The simple thing would be to say if councillors want to represent their constituents they cannot then vote, but the public don't understand this. Canny councillors do both by knowing where the line is drawn. They will say they are minded to vote in a particular way but wait to hear all the arguments before making up their mind. They can make an impassioned speech that represents their constituents as long as they still say they want to hear all the arguments."

District Councils Sounding Board vice-chairman Alan Sherwell complains that the plethora of rules and advice clouds what should be a straightforward issue.

"If one has an interest one should declare it and not take part. If you are saying you would not change your view even after discovering new facts then you should not be on the committee," he says. "The rules on predetermination just bring bureaucratic obscurity to something that ought to be simple."

Councillors are doing their best to chart a course through a confused and contentious area open to different interpretations. The rules on predetermination derive from an evolving body of case law, so it is hard to see how legislation could bring clarity even if ministers wished to try. In the meantime, members seeking to take part in pre-application discussions and represent their constituents continue to walk on a tightrope above a minefield.

Keeping an open mind

- Councillors can hold a view in favour of or against a planning application but they must have an open mind before they can vote at planning committee. - They can express a preliminary view on a project and be elected specifically because of this view.

Predetermination happens when a councillor is closed to arguments relating to an application and votes without taking them into account.

Councillors must not even appear to be in this position. Councillors are entitled to hold and express their own views so long as they are prepared to reconsider their position in the light of all the evidence and arguments presented. They must not give the impression that their minds are closed.